1. Surendra Chauhan s/o Late Sanichar Chauhan
2. Ram Kishun Chauhan, s/o Late Sanichar Chauhan
Both are residents of village- Hacchalpur, Tola
Lacchmipur, P.S. Kadwa, District- Katihar.
3. Etwari Kanjar @ Etwari Katiar s/o Late Kanhai
Kanjar (Expunged)
4. Sk. Gafoor s/o Late Sk. Jumrati
5. Sk. Bashir, son of Late Sk. Kailu
6. Sk. Karim, son of late Sk. Samiruddin
7. Sk. Mannan, son of late Abdul Aziz,
8. Sk. Giyasuddin @ Sk. Gyas, son of late Abdul
Aziz,(Expunged)
9. Sk. Samad, son of late Abdul Aziz.
10. Sk. Ziyaul @ Sk. Jabul s/o Late Sk. Abdul Gaffar.
11. Sk. Mansah @ Sk. Mansa, son of Late Sk. Abdul
Gaffar.
12. Sk. Mustafa, son of Late Sk. Abdul Jabbar
13. Sk. Murtaza son of Late Sk. Abdul Jabbar
14. Sk. Barik @ Sk. Bari, son of late Sk. Abdul
Gaffar
Petitioners No. 3 to 14 are resident of village
Gairya P.S. Kadwa, District- Katihar.
... Petitioners.
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Appearance :
For the Petitioner/s :Mr.Ashutosh Ranjan Pandey, Adv.
:Mr. Abdul Wadood, Adv.
:Mr. Rakesh Nanain Singh, Adv.
:Mr. Kulanand Jha, Adv.
For the informant :Mr. B. K. Baiviav, Adv.
For the Respondent/s :Mr. A. M. P. Mehta, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL)
Patna High Court CR. REV. No.362 of 2002 dt.14-11-2011 2
Amaresh Kumar Lal, J. I. A. No. 2064 of 2011 has been
filed for the expunction of petitioner nos. 3
and 8 as they are dead.
The petitioner no. 3 Etwari Kanjar
@ Etwari Katiar died on 8.11.2010 and the
petitioner no. 8 Sk. Giyasuddin @ SK Gyas died
on 16.8.2004. No one disputes this fact.
Let the name of petitioner nos. 3
and 8 be deleted.
This interlocutory application is
allowed.
the judgment and order dated 9.4.2002 passed
by the learned 1st Additional Sessions Judge,
Katihar in Cr. Appeal No. 5 of 1997 by which
the judgment of conviction and sentence passed
by the learned trial court has been confirmed
and the appeal has been dismissed.
The prosecution case, in brief, is
that the informant in the capacity of Sikmidar
of Plot nos. 222 and 223 having an area of
three bighas claiming his possession over the
land since long alleged to have been sown and
grown maize crops over the land in dispute,
Patna High Court CR. REV. No.362 of 2002 dt.14-11-2011 3
but on 2.5.1988 at about 7.30 a.m. all the
accused petitioners after forming an unlawful
assembly armed with deadly weapons and 25-30
labourers started looting the maize crops
standing on the aforesaid land. The informant
Mahavir Chouhan and his nephew Baijnath
Chauhan rushed to the field when they are
about to reach on the land, one of the accused
Sk. Bari fired at them causing gun shot
injury in the leg of Baijnath Chouhan. Hearing
the sound of firing the villagers started
assembling and proceeding towards the place of
occurrence, then accused Sk. Bari and Sk.
Jabbar again fired from their guns causing
pellet injury to Tala Murmur, Jetha Soren and
Karu Rishi. Due to causing of said gun
injuries the informant and his men could not
reach the land in question due to fear and
death and getting opportunity the accused
persons looted the maize crops and took away
after loading on the tractor causing a loss of
Rs.4000/-.
On the fard beyan Kadwa P. S. Case
No. 63 of 1988 was registered against 19
persons. After investigation the I. O. sent
all the four injured to the hospital for their
Patna High Court CR. REV. No.362 of 2002 dt.14-11-2011 4
treatment. Four injury reports have been
submitted by the doctors. After investigation
charge-sheet was submitted. After trial, all
the accused have been convicted and sentenced
to rigorous imprisonment for five years under
Sections 307 and 149 I.P.C., One year rigorous
imprisonment under Section 147 I.P.C. and two
years rigorous imprisonment under Section 379
I.P.C. and the accused Sk. Bari was convicted
and sentenced to undergo rigorous imprisonment
for two years under Section 27 of the Arms Act
and also for two years under Section 148
I.P.C. and all the sentences to run
concurrently vide order dated 20.1.1997. The
petitioners preferred Criminal Appeal no. 5 of
1997 against the aforesaid judgment of
conviction and sentence. The appeal has been
dismissed vide impugned order dated 9.4.2002.
Learned counsel for the petitioners
assailed the judgment of learned Appellate
Court on various grounds. It has been
submitted that the appellate Court has not
considered the material on record on right
perspective. The learned courts below have
failed to consider the injuries found on the
person of P.W. 1 Tala Murmu, P.W. 2 Jetha
Patna High Court CR. REV. No.362 of 2002 dt.14-11-2011 5
Soren, P. W. 3 Karu Rishi and P. W. 4 Baijnath
Chauhan which are simple in nature and not
dangerous to life. The evidence of P.W. 8, Dr.
Jagarnath Prasad has not been considered
properly. The doctor has not found any injury
dangerous to life rather they have been found
simple in nature and not by firearms. The
doctor has also found that the age of injury
was 48 hours and the prosecution had not given
any explanation for it.
Learned counsel for the State
assisted by learned counsel for the informant
has submitted that there is a concurrent
finding of fact and this Court should not
interfere with the impugned order.
Normally, the revisional court
should not enter into the reappraisal of the
evidence, but at the same time it cannot
ignore the finding of fact which is perverse
in nature. Reappreciation of evidence by the
appellate court is essential and it cannot
proceed to dispose of the appeal upon
appraisal of evidence by the trial court
alone, particularly when the appeal has been
admitted and placed for final hearing.
Upholding such a procedure would amount to
Patna High Court CR. REV. No.362 of 2002 dt.14-11-2011 6
negation of valuable right of appeal of an
accused, which cannot be permitted under law.
A reference may be made to the decision of
Hon'ble Apex Court in the case of Rama & ors.
vs. State of Rajasthan reported in (2000) 4
SCC 571.
Considering the facts and
circumstances stated above, the impugned order
passed by the learned appellate court is set
aside. The matter is remitted back to the
appellate Court for disposal of appeal in
accordance with law after giving proper
opportunity of hearing to both the parties.